BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G DAVID TYLER WHITE, EMPLOYEE

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1 BEFORE THE RKNSS WORKERS COMPENSTION COMMISSION CLIM NO. G DVID TYLER WHITE, EMPLOYEE CLIMNT JMES OSCR GONZLEZ, Individually, d/b/a BUGMOBILE OF RKNSS, INC., and FIREMN S FUND INSURNCE COMPNY, LIBILITY CRRIER RESPONDENT #1 BUGMOBILE OF RKNSS, INC. and TECHNOLOGY INSURNCE COMPNY/ mtrust NORTH MERIC, TP RESPONDENT #2 OPINION FILED MY 19, 2016 Hearing before Chief dministrative Law Judge David Greenbaum pril 15, 2016, at Luxora, Mississippi County, rkansas. Claimant represented by Mr. Charles. Banks, ttorney-at-law, Little Rock, rkansas. Respondents #1 represented by Mr. Victor I. Crowell, ttorney-at-law, Fort Smith, rkansas. Respondents #2 represented by Mr. William C. Frye, ttorney-at-law, North Little Rock, rkansas. STTEMENT OF THE CSE hearing was conducted on pril 15, 2016, to determine whether the exclusive remedy provisions of the rkansas Workers Compensation ct apply to this claim. prehearing conference was conducted in this claim on February 24, 2016, and a Prehearing Order was filed on said date. t the hearing, the parties announced that the stipulations, the issue, as well as their respective contentions were correctly set out in the Prehearing Order. copy of the February 24, 2016,

2 2 Order was filed, without objection, as Commission s Exhibit 1. It was stipulated that the employee/employer/carrier relationship existed between the claimant and respondents #2 at all relevant times, including May 26, 2015; that the claimant sustained various injuries as the result of a motor vehicle accident on said date; and that respondents #2 had controverted the claim in its entirety for purposes of attorney s fees. By agreement of the parties, the sole issue for determination was whether the claimant was providing employment-related services at the time of his motor vehicle accident, restricting this claim to the exclusive remedy provisions provided under the rkansas Workers Compensation ct. Claimant contended, in summary, that he was returning home from work at the time he was rear-ended by respondents #1, causing his multiple injuries; that he was not performing employment-related services at the time of the MV; that there was no exception to the going and coming rule which would bring this claim within the exclusive remedy of the ct and that he should be entitled to pursue a tort claim against respondents #1. Respondents #1 contended that the claimant was still within the course and scope of employment while being followed by his employer at the time of the motor vehicle accident and that the claimant s remedy was exclusively for benefits under the workers compensation laws. Respondents #2 deferred to the outcome of litigation stating that it was willing

3 3 to pay all related benefits under the workers compensation laws in the event it was determined that the claimant was performing employment related services at the time of his accident and injuries. The record consists solely of the transcript of the pril 15, 2016, hearing containing the lay testimony of eight (8) witnesses, together with various exhibits which were introduced and made a part of the transcript. From a review of the record as a whole, to include various documents and other matters properly before the Commission, and having had an opportunity to hear the testimony of the witnesses and to observe their demeanor, the following findings of fact and conclusions of law are made in accordance with rk. Code nn : FINDINGS OF FCT ND CONCLUSIONS OF LW 1. The rkansas Workers Compensation Commission has jurisdiction over this claim. 2. The stipulations agreed to by the parties are hereby accepted as fact. 3. The claimant was providing employment-related services at the time of his motor vehicle accident and resulting injuries. 4. The claimant s exclusive rights and remedies for benefits are provided by the Workers Compensation ct. 5. The exact nature and extent of the claimant s injuries, together with the claimant s entitlement to various benefits are specifically reserved. DISCUSSION This is an extremely unusual case. It is undisputed that the claimant s

4 4 injuries were caused when he was driving home from work on May 26, The claimant was driving his mother s vehicle at the time he was rear-ended by his employer driving a company truck. It is further undisputed that the claimant was scheduled to take a test at the rkansas State Plant Board the following morning on May 27, It is further undisputed that the claimant was going to drive a company vehicle from Mississippi County to Little Rock, rkansas, to take the examination at the Plant Board. The only real factual dispute concerned how the claimant was going to pick up the company truck to drive to Little Rock. Prior to May 26, 2015, the claimant s daily routine was that he drove his mother s car to work and parked it at the Bugmobile office in downtown Osceola until returning home. The claimant testified that, to the best of his memory, he thought he was supposed to pick up the company truck from the office the morning he was scheduled to go to Little Rock. However, the employer asserted that, at the time of the accident, he was following the claimant home in order to give him a ride back to the Bugmobile office so that he could then pick up a Bugmobile vehicle to drive to Little Rock the following morning. The purpose of the trip to Little Rock was to take a test to become a licensed service technician which would benefit both the employer and the claimant which is the reason respondents #2 maintained that the claimant was performing employment-related services at the time of the accident. Clearly, as reflected further below, given the nature of the claimant s injuries, including a head injury, he had no recollection of either the accident itself or any

5 pre-accident conversations. 5 However, multiple witnesses corroborated the testimony of James Gonzalez, Sr., that he was following the claimant home to give him a ride back to the Bugmobile office in order to pick up a company vehicle to drive the following morning. In my opinion, the evidence is clear and convincing that the claimant was performing employment-related services at the time of his motor vehicle accident, entitling him to appropriate workers compensation benefits. What is extremely puzzling and remains unexplained is why the respondent workers compensation insurance carrier did not promptly accept and pay appropriate workers compensation benefits. The record reflects that the employer immediately reported the accident and claimant s injuries to his insurance agent who wrote insurance coverage, both general liability, as well as workers compensation insurance for the employer. Thereafter, the employer acknowledged that the claimant s injuries were related to his employment and, in fact, filled out an Employer s First Report of Industrial Injury; however, for unexplained reasons, the workers compensation carrier never filed appropriate Commission forms either accepting or controverting the claim. It was only after claimant s attorney filed a law suit in tort against the employer which caused the jurisdictional issue to be raised and resolved that the workers compensation carrier deferred to the outcome of litigation stating that it would pay all related benefits in the event it was determined the claimant was performing employment-related services. The employer, at all times, admitted the claimant s injury was work-related.

6 6 James Oscar Gonzalez, Sr., was called as a witness by respondents #1. Mr. Gonzalez is the manager and chief operating officer for the employer. Rather than conduct an exhaustive analysis of Mr. Gonzalez s testimony, the relevant portion concerning the events surrounding the accident are set out below: BY MR. CROWELL: nd this is really just for date purposes, and based on this application Mr. White was to take the second test on May 27 th, 2015, correct? Correct. nd where was that test to be taken? In Little Rock at the rkansas State Plant Board of fices. Okay. When Mr. White took the first test, how did he get to Little Rock to take the test? My grandson rode with him to help tutor him, and I let them spend the night before for my grandson to help tutor him because he s a license holder also, and, you know, we provided his way down there. Okay. Who did he ride with the day before the test? nd this is the first test. The first test? Yes, sir. You mean to get to Little Rock? Yes, sir. Jade lan Gonzalez. Okay. nd you paid for the hotel room and all that? Yes, sir.

7 7 nd the test application and Right. then he went and took the test the next morning? nd paid him for the day, too. Okay. nd the next test which was to be taken on May 27 th, 2015, did you have conversations with Mr. White as to how he was to get to Little Rock to take the test on May 27 th, 2015? Yes. What did you tell him? I told him that I would to meet me after work and I d provide him a vehicle, and we would get him ready and give him his money, expense money and so on, and get him in a vehicle so he could leave out early the next morning, because he had to leave out at like 6:30 to 7:00 o clock. He d have to leave home by that time to be able to make it by the test time. nd when was he supposed to pick up the Bugmobile truck? t about 5:00 o clock. I think he I think they had actually made it to the office a few minutes before 5:00, 10 or 15 minutes til 5:00. Okay. You kind of got to where I was going. I want to get to the afternoon of the accident, May 26, 2015, before he got off work. Okay. Were you in the office that afternoon? I was. nd was there a point when Mr. White came into the office after working out in the field? Yes. Tell the Court what conversations, if any, that you had with Mr. White at that

8 8 point. I think I was on the telephone when he first came in, so he waited until I got off the telephone, and then he came in and we went back to my son s office and discussed the routine. nd what did you tell him? I told him that we had his appointment set up. He had to leave early. He had to get there by I think it s 10:00 o clock. My son sets all those up. But I said, You ll have to leave early, and I said, I ll follow you home and bring you back, and you can get a Bugmobile vehicle or a vehicle to provide your transportation in the morning. Okay. Just to be clear, when was he to pick up the Bugmobile vehicle? Right then. I mean, as soon as I took him home and I pick him up and he come back and I put him in it. nd this was to occur on May 26, 2015, after 5:00 o clock? Yes. Okay. nd after this conversation, what happened next? Well, everybody left and David and I went out to the vehicles, and he left in his vehicle and I pulled out behind him and we headed that way. nd where were you going? We were going to his house. nd where is his house? I don t have the address of it, but he lived somewhere kind of northeast of a community called Burdette. Okay. nd what happened next? I just followed him out of town. I remember following him out of town, and I remember going through the third red light and then followed him out of town, and then I don t remember a lot because I travel that 20 times, 50 times a day

9 9 sometimes, or 20 times a day, it seems, and I followed him out and the next think I knew, I was kind of coming to and had been in an accident. (Tr.34-38) gain, Mr. Gonzalez promptly reported the accident to his insurance agent on May 28, (Resp. #1, Ex. 7) On June 6, 2015, Mr. Gonzalez filled out a First Report of Workers Compensation Injury. In addition, Mr. Gonzalez called the workers compensation agent, one Mr. Jackson, concerning why the claimant was not receiving workers compensation benefits. gain, no valid reason was ever given concerning why the claimant did not receive appropriate workers compensation benefits. However, as reflected above, all additional issues are, by necessity, specifically reserved. (Tr.40-45, 72)(Resp. #1, Ex. 8) In response to questions from this dministrative Law Judge, the employer testified as follows: This is not the first workers comp claim you ve had, correct? Right. Did you do any follow-up with the insurance company to determine why it was not paying the Claimant weekly benefits? I did. Well, I called and kept wanting a status report. I didn t, you know, I didn t call and demand anything of them because, you know, I had turned it in and I just kept calling them. I said, Have you started his workmen comp? or something like that. What was their response? They said, No, we haven t. Well, one time they said that they had sent a nurse over there to try to, you know, make contact with him to see what all he needed and get his information, and I think they were waiting until he got out of the

10 10 critical care thing. Do you know how long he was in critical care? No, sir, I don t know exactly. nd it s your testimony that you had no further communications from the Claimant or any family member as to why he was not getting paid while he was unable to work? No. (Tr.69-70) Rather than conduct an exhaustive analysis of the testimony of the corroborating witnesses, suffice it to say that ngela Jones, Judy Brown, James Eldon Griffin, and James O. Gonzales, Jr., all corroborated the testimony of James Gonzales, Sr., concerning why the claimant was being followed home by the employer. ll witnesses testified that the purpose of Mr. Gonzalez following the claimant on May 26, 2015, was to allow him to drop off his mother s car and then bring the claimant to the office to pick up a company vehicle to drive the following morning. s previously pointed out, the claimant admitted that he had no memory of either the accident or any pre-accident discussions. The claimant s testimony was of little probative value. (Tr.81-82) DJUDICTION The rkansas Code defines a compensable injury as [a]n accidental injury... arising out of and in the course of employment. rk. Code nn (4)()(i) (Supp.2007). The definition of compensable injury excludes

11 11 injuries inflicted upon an employee at a time when employment services are not being performed. rk. Code nn (4)(B)(iii). The issue of whether an employee was performing employment services within the course of employment depends on the particular facts and circumstances of each case. Texarkana School District v. Conner, 373 rk. 372, 284 S.W.3d 57 (2008). n employee is performing employment services when he is doing something that is generally required by his employer. Wallace v. West Fraser South, Inc., 365 rk. 68, 225 S.W.3d 361 (2006). The test is whether the injury occurred within the time and space boundaries of the employment, when the employee was carrying out the employer s purpose or advancing the employer s interest directly or indirectly. Id. The critical issue is whether the interests of the employer were being directly or indirectly advanced by the employee at the time of the injury. Id. The term employment services is not limited to duties that an employee was hired to do; an employer has the power to enlarge the course of employment by assigning tasks outside the usual scope of the employment. rkansas Department of Correction v. Glover, 35 rk. pp. 32, 812 S.W.2d 692 (1991). Whether an employer requires an employee to do something has been dispositive of whether the activity constituted employment services. See, Ray v. University of rkansas, 66 rk. pp. 177, 990 S.W.2d 558 (1999). I find that the claimant was performing employment-related services at the time of his injury. preponderance of the credible evidence reflects that the employer was following the claimant home in order to bring him back to work to pick

12 12 up a company vehicle which the claimant would in turn drive the following morning to Little Rock, rkansas. Unfortunately, the employer rear-ended the vehicle in which the claimant was driving causing multiple injures. The claimant s exclusive remedy is under the workers compensation laws. By necessity, the nature and extent of claimant s injuries, as well as the claimant s entitlement to various workers compensation benefits has been specifically reserved. IT IS SO ORDERED. DVID GREENBUM Chief dministrative Law Judge

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